General Considerations in Giving Force to Constitutional Protections

• Author: Environmental Law Institute
• Pages: 1-12

I. General Considerations in Giving Force to

Constitutional Protections

Given the many existing and developing environmental laws, regulations,

and standards throughout Africa, it is worth considering what is gained by

resorting to constitutional provisions to protect the environment. With the

growing trend of constitutionalism (emphasizing the constitution as a

source of binding legal obligations and rights), courts worldwide increas-

ingly are giving force to substantive constitutional provisions.

A nation’s constitution is more than an organic act establishing gov-

ernmental authorities and competencies.1Aconstitution can also guaran-

tee citizens basic fundamental human rights such as the right to life, the

right to justice, and increasingly the right to a clean and healthy environ-

ment. With heightened environmental awareness in recent decades, the

environment has become more of a political priority, and many constitu-

tions now expressly guarantee a “right to a healthy environment,” as well

as the procedural rights necessary to implement and enforce this right.

Similarly, courts around the world have interpreted the near-universal

provision of “right to life” to implicate the right to a healthy environment

in which to live that life.

Constitutional provisions that enumerate substantive individual rights

have not always been directly enforceable by citizens, and even now do

not always create an affirmative right. However, the consistent and

nearly universal trend is toward giving force to these provisions. Consti-

tutional provisions may be used defensively (or restrictively), to protect

against actions that violate citizens’ constitutional rights (such as a gov-

ernment’s unconstitutional interference with an association); and affir-

matively, to compel the government to ensure certain constitutional

rights (such as closing polluting businesses that impair citizens’ rights to

life and a healthy environment).

1

1. See, e.g., Carl Bruch et al., Legislative Representation and the Environ-

ment in African Constitutions,21Pace Envtl. L. Rev. 119, 119-20

(2003) (identifying various roles that constitutions play in the environmen-

tal context, including: establishing governmental frameworks; defining

the relationship between national and subnational authorities; providing a

broad mandate to enact environmental legislation; and prescribing the

terms by which legislators represent their constituencies with respect to en-

vironmental and natural resource issues).